The Importance of Understanding and Utilizing Fair Use in Educational Contexts: A Study on Media Literacy and Copyright Confusion

Martine Courant Rife, Lansing Community College and Michigan State University

Report Overview

In September 2007, the Center for Social Media at the School of Communication at American University released a report, The Cost of Copyright Confusion for Media Literacy, explaining the results of a study regarding the understanding and use of fair use and copyright by individuals in educational-media literacy contexts. The main inquiry explored the relationship between copyright beliefs and teaching practices. The research found that the key goals of teaching media literacy were “comprised by unnecessary copyright restrictions and lack of understanding about copyright law” (p. 1).

According to the report, copyright law, particularly fair use, provides broad protection for folks working in education. However, due to participants’ lack of knowledge and understanding about the law’s protections, their ability to share, teach, and have students produce media-rich texts was severely circumscribed. Not only that, but the researchers found that teachers’ lack of knowledge was passed on to students as well as colleagues, perpetuating “copyright folklore” that often sees the law as much more restrictive than it is.

The report recommends increased understanding of fair use for educators as well as their institutions, and suggests the development of a statement outlining policies for use of copyrighted materials in education-media literacy contexts.

Discussion of the Study

In order to gather data, the researchers contacted teachers, media literacy curriculum producers, and organizational leaders. While many of the participants worked in K-12, a number of them were from universities. Interviews were conducted by phone and lasted about 45 minutes. According to the researchers, the interview questions were open-ended and explored how teachers use copyrighted materials for education and asked teachers to describe how their students use copyrighted materials in student-created coursework.

A unique aspect of the study was that all interviewees were named along with their area of expertise and institutional affiliations – 62 participants are listed in the appendix, about 30% are associated with teaching in K-12. Many of the participants were from the geographical regions near Temple University (Pennsylvania), but some were from as far away as California. The researchers did not describe their participant recruitment methods in the report except that they did use membership lists of various organizations, including the Action Coalition for Media Education, Alliance for a Media Literate America, The National Council of Teachers of English, the Student Television network, the National Alliance for Media Arts and Culture, and the Youth Media Reporter (p. 23).

The major finding of the study was that the key goals of teaching media literacy were “comprised by unnecessary copyright restrictions and lack of understanding about copyright law” (p. 1). Because of participants’ lack of knowledge and understanding about the law’s protections, their ability to share, teach, and have students produce media-rich texts was severely circumscribed. Not only that, but the researchers found that teachers’ lack of knowledge was passed on to students as well as colleagues, perpetuating “copyright folklore” (p. 12) that often characterized the law as much more restrictive than it is.

Additionally, the study offered the following findings:

During the last decade, copyright awareness has greatly increased among the educational community.

Teachers believe that the ability to access and use copyrighted materials is central to educating citizens, and is a necessary component to maintaining a democracy. “More than any other feature of copyright law, fair use recognized the core speech values enshrined in the first amendment” (p. 6).

Too many teachers are unaware of the expansive nature of fair use, and instead rely on various “Guidelines” circulating on the web and adopted by some institutions. The guidelines have varying histories, but are mainly products of the publishing industry.

Teachers are confused about the differences between plagiarism and copyright, and talk about the two interchangeably although they are separate doctrines (attribution is irrelevant to the issue of “fair use”).

Teachers received their information from the media, their institutions, and lore. The information they receive either negates fair use or casts it in a conservative light.

Many institutions have extremely restrictive policies about using copyrighted materials – including how students’ texts can be displayed. For example, some schools would only let student multimedia pieces be displayed in individual classrooms rather than on school-wide media display systems. Such policies fail to recognize fair use as a legitimate part of US law.

Gaining permission from copyright holders for educational use was not “an option among interviewees” (p. 10). Either the permission was not granted, or the fee requested was unreasonable in the context.

“Studied ignorance” was defined by the researchers as the “what I don’t know can’t hurt me” attitude. Teachers believed that if they stayed ignorant of the laws, they didn’t need to worry or comply. “Quiet transgression” described teachers’ willingness to do what they considered illegal with the hopes that they were unlikely to get caught. “Hyper-compliance” was defined as teachers who created blanket prohibitions in the area of student work especially – such as not permitting students to use any copyrighted materials in their own coursework.

The “costs” of this confusion, according to the report, are less effective teaching materials, constriction of creativity for teachers and students, and the perpetuation of misinformation. Recommendations included developing a code of practice or a statement of fair use practices to assist the educational community. As an example, the authors refer to the recently developed Documentary Filmmakers’ Statement of Best Practices in Fair Use which have been negotiated with the Cost of Copyright Confusion co-authors along with documentary filmmaker organizations. Apparently, the Statement had an immediate effect. “Filmmakers themselves, commercial networks, and the Public Broadcasting System all refer to it on a regular basis . . . it has permitted filmmakers to portray reality as they see it without compromise” (p. 23).

Implications for Educators and Writing Teachers

The study, conducted through Temple University’s Center for Social Media and funded by the John D. and Catherine T. MacArthur Foundation, connects to teachers of writing both directly and indirectly. It’s directly connected to us as writing teachers in two ways. One, the reports’ co-authors are Renee Hobbs, founder of the Media Education Law at Temple University School of Communication, Peter Jaszi, Program on Information Justice and Intellectual Property in the American University Washington College of Law, and Pat Aufderheide, Center for Social Media at American University School of Communication. Notably, Peter Jaszi has in the past, co-authored pieces with Martha Woodmansee (1994, 1995) regarding the teaching of copyright in the context of composition instruction. Two, the report states that study participants were recruited from various membership lists, including the National Council of Teachers of English (NCTE).

The study is indirectly connected to us simply because it is situated in existing scholarship within our field on a number of issues. For a small example consider the issue of copyright and chilled speech (Porter, 2005; Westbrook, 2006), ethics, copyright, and fair use (DeVoss & Porter, 2006), first amendment and copyright (Herrington, 1998), the teaching of fair use (Logie, 1998; CCCC IP Caucus statement; Walker, 1998), importance of understanding the TEACH Act (Reyman, 2006), and rhetorical tactics used to scare potential content users (Logie, 2006). I think we will all agree that the Cost of Copyright Confusion study speaks to issues that many of us care about. But what should we do, based on this study? One thing that we are already doing is working in this area in a way that is relevant to the teaching of composition and rhetoric. I have listed some existing scholarship in composition studies as a small example. This work should of course continue.

As such scholars (Herrington, Logie, Porter, DeVoss, etc.) have already suggested, we as composition teachers should take ownership of these issues. While I commend the Center of Social Media for its important work in the area of teaching, copyright, and fair use, I also implore researchers in rhetoric and writing (R&W) to conduct their own research with their own methodologies, and in a fashion that makes sense to us in R&W. For example, while researchers with the Cost of Copyright Confusion study interviewed 62 individuals about their understanding and practice regarding fair use, it seems to me that an important population was not included, and that is the students who also need fair use rights, and who are also impacted by the so-called “misinformation” that their teachers are passing on. Student perspectives would add rich details to the study’s findings. For a beginning, see Sue Webb’s (2008) reflection on composing and displaying her “Grand Theft Audio” multi-media piece.

The idea of developing a statement of fair use has previously been addressed in our field. We do have the existing CCCC IP Caucus (2000) fair use statement, but that was published almost a decade ago. It might be worthwhile to consider updating, renegotiating, and re-publishing this statement, perhaps using the CCCC IP caucus as a vehicle to do so. Including other stakeholders might give such a statement more punch. I am thinking of organizations like NCTE and affiliates, the American Association of University Professors, and perhaps key textbook publishers like Bedford/St. Martin’s, Erlbaum, and so on. We might enlist the help of Educause (through our institutional representatives). With collaborations like this, teachers and researchers within R&W should explore and pursue funding opportunities such as that offered by the MacArthur Foundation. These kinds of funds will support our work and further our expertise and legitimacy as experts of new-media writing.

Apart from direct political action, I think as new-media specialists we also want to take it upon ourselves to self-educate on copyright and fair use, and develop accurate and appropriate curriculum. We should make a space for this in our writing programs and professional development seminars. To do otherwise runs the risk that statements on fair use will be developed by lawyers outside our field rather than us: “us” as the experts on writing and the teaching of writing, for whom fair use is central.

Porter, J.E. (2005). The chilling of digital information: Technical communicators as public advocates. In Michael Day and Carol Lipson (Eds.). Technical communication and the world wide web in the new millennium (pp. 243-259). Mahway, NJ: Erlbaum.